Economic and Social Rights in the United States ... UNIVERSITY LAWJOURNAL President Jimmy Carter...

NORTHEASTERN UNIVERSITY LAWJOURNAL

Economic and Social Rights in the United States:Implementation Without Ratification

Gillian MacNaughton*Mariah McGill**

I. Introduction

In 1948, the United Nations General Assembly adopted theUniversal Declaration of Human Rights, which has since becomethe most widely known pronouncement of human rights around theworld.' At that time, the United States government firmly support-ed the inclusion of economic and social rights-including the rightsto health, education, housing, decent work, and an adequate stan-dard of living-that are enshrined in the Declaration.2 Indeed, the

* Gillian MacNaughton is a Senior Fellow with the Program on Human Rightsand the Global Economy at Northeastern University School of Law. This arti-cle grew out of a paper presented at the 2011 annual meeting of the Law andSociety Association in San Francisco. I wish to thank the moderator, the otherpanelists, and the participants at that presentation for their helpful comments.I would also like to thank Angela Duger and Nizhum Shaikh for assistance inpreparing this article for publication.

** Mariah McGill is the Ford Foundation fellow with the Program on HumanRights and the Global Economy at Northeastern University School of Law. Iwish to thank Shatilla Shera DeLeon and Alexandra Bonazoli for assistancewith this article.

1 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR]. The UDHR has been trans-lated into 384 languages. U.N. OFFICE OF THE HIGH COMMISSIONER FOR

HUMAN RIGHTS (OHCHR), Universal Declaration ofHuman Rights, http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx (last visited Apr. 18, 2012).

2 See Daniel J. Whelan & Jack Donnelly, The West, Economic and Social Rights,and the Global Human Rights Regime: Setting the Record Straight, 29 HuM. RTS.

Q. 908, 911 (2007) ("Other states certainly supported economic and socialrights. None, however, did so with more genuine commitment or greateractual impact than the United States and Great Britain, the two leading West-ern powers."); JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF

HUMAN RIGHTS: ORIGINS, DRAFTING AND INTENT 237 (1999) (EleanorRoosevelt, the delegate for the United States, maintained that all the articlesin the UDHR were equally important and priority should not be given to onearticle over another); UDHR, supra note 1, arts. 23-24 (right to decent work

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United States was a member of the U.N. Commission on HumanRights, which was responsible for drafting the document, and theCommission considered economic and social rights essential to theholistic framework of the Declaration. From the initial draft of thethen-labeled "International Bill of Human Rights" by John Humphrey,which was based largely upon the constitutions of the members ofthe United Nations at the time, to the final Declaration adopted onDecember 10, 1948, the United States supported this holistic humanrights framework encompassing a full spectrum of economic, social,cultural, civil, and political rights.

Times changed. Since 1948, the United States has been ambiv-alent and, at times, hostile to economic and social rights.' In 1977,

and limitation on working hours), art. 25 (rights to adequate standard of liv-ing, including food, clothing, housing, medical care, social services, and socialsecurity), art. 26 (right to education).

3 See MORSINK, supra note 2, at 235 (drafters did not believe that there weretwo kinds of rights, but rather believed "in the fundamental unity of all humanrights"); see also Gillian MacNaughton & Diane E Frey, Decent Work for All: AHolistic Human Rights Approach, 26 AM. U. INT'L L. REv. 441, 451-61 (2011)(explaining the holistic human rights approach referenced in the preamblesto the UDHR, the International Covenant on Economic, Social, and Cultur-al Rights, the International Covenant on Civil and Political Rights, as well asseveral U.N. declarations, including the Declaration on the Right to Develop-ment and the Vienna Declaration and Program of Action).

4 See U.N. Secretariat, Draft Outline of International Bill of Rights, U.N. Doc.E/CN.4/AC.1/3 (June 4, 1947) (cited in MORSINK, supra note 2, at 7, andreprinted in MARY ANN GLENDON, A WORLD MADE NEw: ELEANOR Roo-SEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 271-74(2001); U.N. Comm'n on Human Rights, Drafting Comm., International Billof Rights: Documented Outline, U.N. Doc. E/CN.4/AC.1/3/Add.1 (June 11,1947) [hereinafter Documented Outline] (setting out each of the forty-eightarticles in Humphrey's original draft, and following each article, the relatedprovisions in fifty-three national constitutions and six draft proposals collect-ed by the Division of Human Rights of the U.N. Secretariat); MORSINK, supranote 2, at 227 (the Declaration included the main rights then included in thenational constitutions around the world).

5 Hope Lewis, "New" Human Rights? U.S. Ambivalence Toward the International Eco-nomic and Social Rights Framework, in BRINGING HUMAN RIGHTs HOME: AHISTORY OF HUMAN RIGHTS IN THE UNITED STATES 100, 100-01 (Cyn-thia Soohoo et al. eds. 2009) (providing a detailed account of the position ofthe United States toward economic and social rights over the past six decades);see also Philip Alston, Putting Economic, Social, and Cultural Rights Back on theAgenda of the United States, in THE FUTURE OF HUMAN RIGHTS: U.S. POLICYFOR A NEw ERA 121-23 (William F. Schultz ed. 2008) [hereinafter Alston,Putting ESC Rights Back on the Agenda] (summarizing the positions of the U.S.

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President Jimmy Carter signed the two international human rightstreaties implementing the Declaration-the International Covenanton Civil and Political Rights (ICCPR) and the International Covenanton Economic, Social, and Cultural Rights (ICESCR)-but transmittedboth treaties the next year to the U.S. Senate for advice and consentwith substantial "reservations, understandings and declarations."'The Senate Foreign Relations Committee did not support these trea-ties, and they remained in the Committee until the 1990s.1 In 1992,the Senate finally approved the ICCPR, which was then ratified bythe Bush administration. The Senate, however, has never approved,and the United States has therefore never ratified, the ICESCR.9 Andit will not likely do so in the near future.10 While the United Statesis now renowned for its failure to ratify most of the core internation-

administrations from Roosevelt's administration in the 1940s to the Bushadministration in 2006).

6 Lewis, supra note 5, at 119. International Covenant on Civil and Political Rights,opened for signature Dec. 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.TS. 171,(entered into force Mar. 23, 1976) [hereinafter ICCPR]; International Covenanton Economic, Social and Cultural Rights, opened for signature Dec. 19, 1966,G.A. Res. 2200 (XXI), U.N. GAOR 21st Sess., Supp. No. 16, at 49, U.N. Doc.A/6316 (1966), 993 U.N.T.S. 3, (entered into force Jan. 3, 1976) [hereinafterICESCR]. At the same time, President Carter sent the Senate the InternationalConvention on Elimination of All Forms of Racial Discrimination (ICERD) andthe American Convention on Human Rights. Lewis, supra note 5, at 119.

7 Lewis, supra note 5, at 121.8 See Status of Treaties, International Covenant on Civil and Political Rights,

U.N. TREATY COLLECTION http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsgno=IV-4&chapter= 4&lang=en (last visited Jan.22, 2012). Among the nine core international human rights treaties, the UnitedStates has ratified three: the ICCPR, ICERD, and the Convention AgainstTorture (CAT). See Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment, adopted Dec. 10, 1984, 1465 U.N.TS.85 (entered into force June 26, 1987) (United States signed on Apr. 18, 1988,ratified Oct. 21, 1994); ICCPR, supra note 6 (United States signed on Oct. 5,1977, ratified on June 8, 1992); International Convention on the Eliminationof All Forms of Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S.195 (entered into force Jan. 4, 1969) (United States signed on Sept. 28, 1966,ratified on Oct. 21, 1994).

9 See Status of Treaties, International Covenant on Economic, Social and Cultural Rights,U.N. TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsgno= IV-3&chapter= 4&lang= en (last visited Jan.22, 2012).

10 See Lewis, supra note 5, at 120-21.

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al human rights treaties," its reluctance to commit to the ICESCRis particularly strong. According to international human rights lawscholar Hope Lewis, the ICESCR remains today "the most contro-versial human rights treaty for the United States."12

Having failed to ratify the ICESCR, the United States govern-ment has no obligation to report to the Committee on Economic,Social, and Cultural Rights on its progress in implementing theserights." Nonetheless, economic and social rights are being imple-mented in the United States in many ways. Importantly, not allinternational human rights obligations derive from the internation-al treaties; some obligations arise simply from membership in theUnited Nations.14 Accordingly, international human rights mecha-

11 The United States has not ratified the Convention on the Rights of the Child(CRC), which now has 193 state parties, making it one of only two countriesin the world that has not ratified this convention. Additionally, the UnitedStates has not ratified: the Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW), which now has 187 state parties;the International Convention on the Protection of Migrant Workers and theirFamilies, which now has 45 state parties; and the Convention on the Rightsof Persons with Disabilities, which now has 112 state parties. See Databases,Statuses of Treaties, Human Rights, U.N. TREATY COLLECTION, http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en (last visited Apr. 18,2012) (containing information for each core U.N. human rights treaty, includ-ing the number of signatories and state parties); Convention on the Rights ofPersons with Disabilities, adopted Dec. 13, 2006, 2515 U.N.T.S. 3 (enteredinto force May 3, 2008); International Convention on the Protection of theRights of All Migrant Workers and Members of their Families, adopted Dec.18, 1990, 2220 U.N.T.S. 3 (entered into force July 1, 2003); Convention on theRights of the Child (CRC), adopted Nov. 20, 1989, 1577 U.N.T.S. 3 (enteredinto force Sept. 2, 1990); Convention on the Elimination of All Forms of Dis-crimination Against Women (CEDAW), adopted Dec. 18, 1979, 1249 U.N.T.S.13 (entered into force Sept. 3, 1981).

12 Lewis, supra note 5, at 121.13 See ICESCR, supra note 6, art. 16 (stating that State Parties to the ICESCR

undertake to submit reports to the Economic and Social Council via theU.N. Secretary-General); Econ & Soc. Council Res. 1985/17, 1st Reg. Sess.1985, Supp. No. 1, U.N. Doc. E/1985/17, para. (a) (May 28, 1985) (statingthat the Working Group established by the Economic and Social Council toreview reports submitted by States parties to the ICESCR shall be renamed

"Committee on Economic, Social and Cultural Rights" (CESCR)).14 See, e.g., U.N. Charter arts. 55-56 (stating that all members of the U.N. pledge

to promote universal respect for and observance of human rights for all);IAN BROWNLIE & Guy GOODWIN-GILL, BASIC DOCUMENTS ON HUMAN

RIGHTS 23 (Ian Brownlie & Guy S. Goodwin-Gill eds., 5th ed. 2006) (statingthat UDHR is not a legally binding instrument but is an authoritative guide

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nisms-including the United Nations Human Rights Council and theSpecial Procedures-investigate the record of the United States onrespecting, protecting, and fulfilling the economic and social rightsin the Universal Declaration of Human Rights.' 5 Additionally, inter-national economic and social rights norms are being implemented atthe sub-national level by state, county, and city governments lookingto international human rights laws to guide policy-making and pro-gramming.16 Finally, advocates are turning to international economicand social rights in pressing their cases before courts,legislatures, andother governmental entities.17 Thus, despite the ambivalence of theU.S. government toward these rights, they are being implemented inthe United States at the local, state, and even national level.

While several other articles in this volume focus on opportuni-ties for activists to use international economic and social rights in theUnited States to mobilize people, to analyze policies, and to advocate

to the interpretation of the human rights to which the U.N. Charter commitsall its members).

15 Risa E. Kaufman & JoAnn Kamuf Ward, Using Human Rights Mechanisms of theUnited Nations to Advance EconomicJustice, 45 CLEARINGHOUSE REV. 259, 262-

63 (2011):16 See infra sections IV and V17 See, e.g., Cathy Hollenberg Serrette, Invoking International Human Rights Law in

Litigation:A MarylandJudge's Perspective, 45 CLEARINGHOUSE REv. 238, 238-42(2011) (arguing for the use of human rights law and norms in federal and statecases); The Opportunity Agenda, Human Rights in State Courts: An Overview andRecommendations for Legal Advocacy, 45 CLEARING HOU SE REv. 233, 233 (2011)(citing Graham v. Florida, 130 S. Ct. 2011, 2034 (2010); Roper v. Simmons,543 U.S. 551, 575-78 (2005); Lawrence v. Texas, 539 U.S. 558, 576-77 (2003);Grutter v. Bollinger, 539 U.S. 306, 342-43 (2003) (Ginsburg, J., concurring))("more and more legal advocates have begun to incorporate human rightsarguments into their work" and U.S. Supreme Court "has increasingly citedhuman rights law as persuasive authority for constitutional decisions"); Brieffor Leadership Conference on Civil and Human Rights et al. as Amici CuriaeSupporting Respondents at 9-13, State of Florida v. U.S. Dep't of Health andHuman Servs., 648 F.3d 1235 (2012) (No. 11-400) (arguing that the Medicaidexpansion provision of the Patient Protection and Affordable Care Act furthersU.S. Compliance with its obligations under international human rights lawto ensure equality of access to health care regardless of race); Mariah McGill,Human Rights From the Grassroots Up: Vermont's Campaign for Universal Health Care,14 HEALTH & HUM. RTs. 2-3 (2012), available at http://hhrjournal.org/index.php/hhr/article/view/456/738 (documenting the success of the VermontWorkers' Center campaign, "Health Care is a Human Right").

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on economic and social issues, among other strategies,18 this articledocuments some of the ways in which the governments in the UnitedStates have already recognized their legal obligations for internation-al economic and social rights."

Following this introduction, Part II sets out the holistic humanrights framework in the International Bill of Human Rights, whichrecognizes a full panoply of economic, social, cultural, civil, and polit-ical rights. Part III addresses the recognition and implementation ofeconomic and social rights in the United States at the national level,specifically examining the record of the United States over the pastdecade in engaging with the U.N. Charter-based bodies on economicand social rights. Part IV discusses state-level recognition and imple-mentation of economic and social rights, focusing on the VermontLegislature's adoption of human rights principles to guide healthcare reform. Part V discusses city-level recognition and implemen-tation of economic and social rights, focusing on the City of Eugene,Oregon's decision to become a "Human Rights City" and subse-quent actions to realize this goal. The article concludes that, despitethe reluctance of the United States to ratify the ICESCR, economicand social rights are being recognized and implemented here and toa greater extent every year.

II. The International Human Rights Framework

The Post-World War II framework for international human rightslaw begins with the United Nations Charter. Article 1 of the Charterestablishes that the purposes of the United Nations are "[t] o main-tain international peace and security" and "to take other appropriate

18 See, e.g., Risa Kaufman, Framing Economic, Social and Cultural Rights at the U.N., 4NE. U. L.J. 407 (2012) [hereinafter Kaufman, Framing ESC Rights]; Eric Tars,Julia Lum & E. Kieran Paul, The Champagne ofHousing Rights: France's EnforceableRight to Housing and Lessons for U.S. Advocates, 4 NE. U. L.J. 429 (2012); Alexan-dra Bonazoli, Human Rights Frames in Grassroots Organizing: CADRE and the Effortto Stop School Pushout, 4 NE. U. L.J. 483 (2012).

19 It also illustrates the considerable moral force of the Universal Declaration ofHuman Rights, if not technically a legally binding instrument. See BROWNLIE& GOODWIN-GILL, supra note 14, at 23 (stating that UDHR is not a legallybinding instrument); GLENDON, supra note 4, at 236 ("The Declaration'smoral authority has made itself felt in a variety of ways... . Its nonbindingprinciples, carried far and wide by activists and modern communications, havevaulted over the political and legal barriers that impede efforts to establishinternational enforcement mechanisms.").

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measures to strengthen universal peace."20 Additionally, the Articledeclares that the United Nations aims " [t]o achieve internationalcooperation in solving international problems of an economic, social,cultural or humanitarian character, and in promoting and encourag-ing respect for human rights and for fundamental freedoms for allwithout distinction as to race, sex, language or religion." 2 1 Articles55 and 56 of the Charter commit all members of the United Nationsto promote "higher standards of living, full employment, and condi-tions of economic and social progress" as well as "universal respectfor, and observance of, human rights." 2 2 The Charter is a legally bind-ing instrument that prevails over any conflicting obligations of theU.N. members under any other international agreement.2 3

Although the Charter does not detail the human rights towhich the U.N. members commit themselves, those human rightsare spelled out in the Universal Declaration of Human Rights. 24 ThePreamble to the Declaration draws on President Franklin D. Roos-evelt's "Four Freedoms" speech delivered in 1941,25 and proclaims

"a world in which human beings shall enjoy freedom of speech andbelief and freedom from fear and want" to be "the highest aspirationof the common people."26 In her book, A World MadeNew:Eleanor Roo-sevelt and the Universal Declaration ofHuman Rights, Mary Ann Glendonasserts, "The Universal Declaration charted a bold new course forhuman rights by presenting a vision of freedom as linked to socialsecurity, balanced by responsibilities, grounded in respect for equalhuman dignity, and guarded by the rule of law."27

The Declaration establishes a holistic human rights frameworkin thirty articles. Article 1 declares that "[a] 11 human beings are bornfree and equal in dignity and rights." 28 It also states that " [t]heyare endowed with reason and conscience and should act toward

20 U.N. Charter art. 1, paras. 1-2.21 Id. art. 1, para. 3.22 Id. art. 55; see id. art. 56 (all member states pledge to take action to achieve the

standards in art. 55).23 See id. art. 103.

*24 BROWNLIE & GOODWIN-GILL, supra note 14, at 23.25 Franklin D. Roosevelt, President of the United States, Address to the Congress

of the United States (Jan. 6, 1941), in 87 CONG. REc. 42, 46-47 (1941) [here-inafter Roosevelt, Four Freedoms] (discussing the "four freedoms", whichwere later adopted in the preamble to the UDHR).

26 UDHR, supra note 1, pmbl.27 GLENDON, supra note 4, at 235.28 UDHR, supra note 1, art. 1.

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one another in a spirit of brotherhood."2 9 Thus, Article 1, originallyproposed by Ren6 Cassin, the French delegate to the Commission,encompasses the French ideals of freedom, equality, and brotherhoodand links them to dignity and rights.3 0 Subsequent articles declarea full range of civil, political, economic, social, and cultural rightsdrawn from the fifty-three national constitutions and five proposalsthat the U.N. Secretariat collected in 1947.1 Article 28 concludes thesection on rights, establishing that "[e]veryone is entitled to a socialand international order in which the rights and freedoms set forthin this Declaration can be fully realized."3 2 This Article in particularconveys the holistic framework, in which all the rights proclaimedare equally important to the dignity of the person.3

Importantly, the Declaration includes economic and social rights,which were widely supported in the 1940s. For example, in 1947,forty countries recognized a right to free and compulsory educationin their constitutions.35 The inclusion of economic and social rights inthe Declaration also reflects the "freedom from want" to which Pres-ident Roosevelt referred in his "Four Freedoms" speech. 6 Further, itimplements Roosevelt's 1944 proposal of a second Bill of EconomicRights, including: "[t]he right to a useful and remunerative job"; the

29 Id.30 GLENDON, supra note 4, at 67.31 See Documented Outline, supra note 4.32 UDHR, supra note 1, art. 28. Articles 29 and 30 establish duties to the

community, limitations on the exercise of rights and rules on interpretation.UDHR, supra note 1, arts. 29-30.

33 MORSINK, supra note 2, at 222, 232, 238.34 Whelan & Donnelly, supra note 2, at 911.35 See, e.g., MORSINK, supra note 2, at 213. Today, the rights to education and

health or health care, for example, are recognized in a majority of national con-stitutions. See Special Rapporteur on the Right to Education, Third Rep. on theRight to Education, paras. 66-67, U.N. Doc. E/CN.4/2001/52 (Jan. 11, 2001)(by Katarina Tomasevski) (stating that the right to education is constitution-ally guaranteed in 142 countries); OHCHR, Fact Sheet No. 31, The Right toHealth 10 (June 2008), available at http://www.ohchr.org/Documents/Publi-cations/Factsheet3 1.pdf (stating that the right to health or the right to healthcare is recognized in at least 115 constitutions and 6 others impose duties ongovernments in relation to health, health services or health budgets); Elea-nor D. Kinney & Brian Alexander Clark, Provisions for Health and Health Care inthe Constitutions of the Countries of the World, 37 CORNELL INT'L LJ. 285, 287(2004) (stating that 67.5% of countries have provisions on health or healthcare).

36 See Roosevelt, Four Freedoms, supra note 25.



right to earn enough to provide adequate food, clothing, and recre-ation; the right to a "decent home"; the rights "to adequate medicalcare and the opportunity . .. to enjoy good health"; "the right to agood education"; and the right to protection from economic insecu-rity in case of "old age, sickness . . . and unemployment."" Finally,the Declaration reflects the obligations of the members of the UnitedNations, as spelled out in the U.N. Charter, to create "conditions ofstability and well-being which are necessary for peaceful and friendlyrelations among nations" by promoting "higher standards of living,full employment, and conditions of economic and social progress.""

The Declaration is a political commitment of the U.N. mem-bers, and importantly, is understood as the U.N. General Assembly'sauthoritative interpretation of the Charter.39 As such, "the Declarationhas considerable indirect legal effect, and it is regarded by the Assem-bly and by some jurists as part of the 'law of the United Nations.' 40

Additionally, since 1948, the Declaration has been implemented in aseries of international human rights treaties, which impose legal obli-gations upon the national governments that choose to ratify them.The U.N. General Assembly adopted the ICESCR and the ICCPRin 1966, and these treaties currently have 160 and 167 state partiesrespectively.41 These two treaties, together with the Universal Decla-

37 Franklin D. Roosevelt, President of the United States, Address to the Con-gress of the United States (Jan. 11, 1944), in 90 Cong. Rec. 54, 57 (1944); seeUDHR, supra note 1, art. 23, para. 3 ("the right to just and favourable remu-neration ensuring for himself and his family an existence worthy of humandignity"), art. 24 ("the right to rest and leisure"), art. 25, para. 1 ("the rightto a standard of living adequate for the health and well-being of himself andof his family, including food, clothing, housing and medical care and neces-sary social services, and the right to security in the event of unemployment,sickness, disability, widowhood, old age or other lack of livelihood in cir-cumstances beyond his control"), art. 26, paras. 1-2 (the right to education

"directed to the full development of the human personality").38 U.N. Charter art. 55(a).39 BROWNLIE & GOODWIN-GILL, supra note 14, at 23 (stating that although the

Declaration is not a legally binding instrument, some of its provisions reflectinternational customary law or the general principles of law).

40 Id.41 See Status of Treaties, International Covenant on Civil and Political Rights,

U.N. TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no= IV-4&chapter=4&lang= en (last visitedApr. 18, 2012); Status of Treaties, International Covenant on Economic, Social andCultural Rights, U.N. TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsgno=IV-3&chapter=4&lang= en (last

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ration and Articles 55 and 56 of the U.N. Charter, compose what iscommonly called the International Bill of Human Rights. 42

The ICCPR recognizes human rights such as the right to life,the prohibitions against torture and slavery, and the rights to pri-vacy, equality before the courts, freedom of association, freedom ofexpression, and freedom of religion.4 3 Most of these rights are alsoenshrined in the United States Constitution, and the United Stateshas ratified the ICCPR largely limiting the scope of the treaty to theprotections already provided in domestic law.44 The ICESCR recogniz-es human rights such as. the rights to decent work, health, education,housing, social security, and an adequate standard of living.45 Few ofthese rights (if any) are recognized in the United States Constitu-tion, and the United States has not ratified this treaty.4 6 Additionalinternational human rights treaties address the human rights con-cerns of specific groups, such as women, children, migrant workers,and people with disabilities, or specific human rights issues, such aracial discrimination or torture.4 7

The United Nations has two systems for monitoring progresson the implementation of international human rights in the world:the Charter-based bodies and the treaty-based bodies. 48 The Char-ter-based bodies are created under the U.N. Charter and includethe Human Rights Council (replacing the Commission on HumanRights in 2006) and the Special Procedures created by the Council.They include working groups, special rapporteurs, and independentexperts with mandates to address specific human rights, countries, or

visited Apr. 18, 2012).42 HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOR-

EIGN POLICY 175 n.1 (1st ed. 1980). Shue also includes the Optional Protocolsto the ICCPR and the ICESCR in the International Bill of Human Rights. Id.

43 See ICCPR, supra note 6, arts. 6-27.44 See Alston, Putting ESC Rights Back on the Agenda, supra note 5, at 120 (stating

that the more traditional civil and political rights can be traced to the U.S.Constitution. and therefore "their importance is almost never challenged inthe United States.").

45 See ICESCR, supra note 6, arts. 6-15.46 See Alston, Putting ESC Rights Back on the Agenda, supra note 5, at 120 (most

economic and social rights have no counterpart in the U.S. Constitution).47 OHCHR, Core International Human Right Instruments and Their Monitoring Bodies,

OFF. OF THE HIGH COMM'R FOR HUM. RTs., http://www2.ohchr.org/english/law/index.htm#core (last visited Apr. 18, 2012).

48 See Kaufman & Ward, supra note 15, at 260.




groups of people. 49 As a member of the United Nations, the UnitedStates government has obligations to implement the economic andsocial rights guaranteed in the U.N. Charter and set out in the Uni-versal Declaration of Human Rights, and its progress in this regardis monitored by these Charter-based bodies.so

The treaty-based bodies monitor the progress that the state par-ties to the treaties make in implementing the rights in the treaties.s'Only the countries that have ratified the specific treaty, however, aresubject to supervision by the respective committee.5 2 The UnitedStates is not a party to the ICESCR, and therefore does not reportto the Committee on Economic, Social, and Cultural Rights. As aresult, the primary international supervision of the United Statesgovernment for its economic and social rights obligations is via themechanisms of the Charter-based bodies.

In sum, international economic and social rights are relevantin the United States despite the failure of the United States to rati-fy the ICESCR. First, the United States has signed the ICESCR andtherefore has some obligations for economic and social rights in thattreaty. As a signatory, the United States is obliged to refrain fromacts that would defeat the object and purpose of a treaty., Addition-ally, some economic and social rights may be addressed by leveragingthese issues under the equality and nondiscrimination provisions ofthe ICCPR and the ICERD, which the United States has ratified. 54

49 Id. at 262; OHCHR, UNITED NATIONS SPECIAL PROCEDURES: FACTS AND

FIGURES 2010 1-2 (2011), available at http://www.ohchr.org/Documents/HRBodies/SP/FactsFigures2010.pdf [hereinafter U.N. SPECIAL PROCE-

DURES: FACTS AND FIGURES 2010].50 See Kaufman & Ward, supra note 15, at 263.51 See id. at 262.52 See, e.g., ICCPR, supra note 6, art. 40 (stating that parties to the ICCPR

undertake to submit reports on measures they have adopted to implementthe rights in the ICCPR and on the progress in enjoyment of these rights).

53 Vienna Convention on the Law of Treaties art. 18, opened for signature May 23,1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980); Michael Posner,Assistant Sec'y, Bureau of Democracy, Human Rights, and Labor, Address atthe 105th Annual Meeting of the American Society of International Law: TheFour Freedoms Turn 70 (Mar. 24, 2011), available at http://www.humanrights.gov/2011/04/20/assistant-secretary-michael-h-posner-the-four-freedoms-turn-70/ (acknowledging that " [w]hile the United States is not a party to theCovenant, as a signatory, we are committed to not defeating the object andpurpose of the treaty").

54 See Kaufman, Framing ESC Rights, supra note 18, at 413; see also Alston, Put-ting ESC Rights Back on the Agenda, supra note 5, at 129 (indicating that when

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Further, the U.N. Human Rights Council and the U.N. Special Pro-cedures monitor the obligations of the United States government foreconomic and social rights arising under the U.N. Charter and theUniversal Declaration of Human Rights. Finally, regardless of theposition of the federal government, governments at the sub-nationallevel are turning to international human rights frameworks, includingeconomic and social rights, to guide their policy-making and pro-gramming. While the U.S. Senate has delayed action on these vitallyimportant rights for decades, other governmental entities in the coun-try are moving forward to implement the vision of a just societyfounded on respect for the equal dignity of every human being thatis enshrined in the holistic framework of the Universal Declarationof Human Rights.

III. National-Level Implementation of Economic and SocialRights

Over the past decade, the Charter-based bodies have had severalopportunities to engage with the national government on its recordwith respect to implementing economic and social rights. The twoprimary mechanisms for this engagement have been the UniversalPeriodic Review before the U.N. Human Rights Council and the mis-sions of the special rapporteurs and independent experts. The factthat the United States government has participated in this interna-tional supervision of its implementation of economic and social rightsitself indicates to some extent that it recognizes that it has some obli-gations for these rights. While there is still a long way to go to getback to the 1940s and the four freedoms envisioned and enshrinedin the Universal Declaration, evidence from the past decade showsthat the situation is also a long way from the 1980s when the U.S.government refused to recognize that economic and social rights are

"human rights" at all."

a government chooses not to make a right justiciable, then concerns overgovernment policy on that issue will be brought as equal protection, nondis-crimination or due process claims); Gillian MacNaughton, Untangling Equalityand Non-discrimination to Promote the Right to Health Care for All, 11 HEALTH &

HUM. RTs. 47, 50-51 (2009) (noting that the right to equality in ICCPR arti-cle 26 extends equality guarantees to cover social sectors regulated by thegovernment).

55 See, e.g., U.N. ESCOR, 42nd Sess., 29th mtg. at 15, U.N. Doc. E/CN.4/1986/SR.29 (Mar. 3, 1986) (statement of Ms. Bryne, United States of America)

Gillian MacNaughton & Mariah McGill376



A. Universal Periodic Review Before the United NationsHuman Rights Council

In 2006, the United Nations General Assembly establishedthe Human Rights Council and mandated that the Council under-take a universal periodic review "of the fulfillment by each State ofits human rights obligations and commitments in a manner whichensures universality of coverage and equal treatment with respect toall States."16 Pursuant to this mandate, the Council established theUniversal Periodic Review mechanism under which all U.N. mem-bers must report to the Council every four years on the actions thatthey have taken to fulfill their human rights obligations arising froithe U.N. Charter, the Universal Declaration of Human Rights, andthe human rights treaties that they have ratified. Among the prin-ciples adopted to guide the Universal Periodic Review is that theprocedure should "promote the universality, interdependence, indi-visibility and interrelatedness of all human rights.", Accordingly, theCouncil conducts its review within the holistic human rights frame-work that includes the full panoply of rights, including economic andsocial rights.

The United States filed its first report for Universal Period-ic Review on August 20, 2010.19 In preparation for the report, theObama Administration held consultations with civil society in

(matters to do with progressive achievement of better standards of living-"economic and social rights"-relate to the goals of government policy ratherthan constituting any legally enforceable rights, which are known as humanrights); see also Philip Alston, U.S. Ratification of the Covenant on Economic, Socialand Cultural Rights: The Need for an Entirely New Strategy, 84 AM.. J. INT'L L. 365,372 (1990) [hereinafter Alston, U.S. Ratification ofCESCR] (detailing the recordof the Reagan administration's policy of "simply defining economic rights outof existence").

56 Human Rights Council, G.A. Res. 60/251, paras. 1, 5(e), U.N. Doc. A/RES/60/251 (Apr. 3, 2006). The Human Rights Council replaced theCommission on Human Rights. Id. para. 1.

57 U.N. Human Rights Council Res. 5/1, Institution-Building of the UnitedNations Human Rights Council, 5th Sess., U.N. Doc. A/HRC/RES/5.1 (June18, 2007).

58 Id. para. 3(a).59 Press Release, U.S. Dep't of State, Release of the U.S. Universal Periodic

Review (U.PR.) Report (Aug. 24, 2010), available at http://www.state.gov/r/pa/prs/ps/2010/08/146233.htm (U.S. submitted U.RR. report to the OHCHRon August 20, 2010); United States of America, National Report Submitted inAccordance with Paragraph 15(a) of the Annex to the Human Rights Council Resolu-

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New Orleans, New York City, Albuquerque, El Paso, San Francis-co, Berkeley, Detroit, Chicago, Birmingham, and Washington, D.C. 60

Importantly, representatives from the U.S. Departments of Educa-tion, Health, Human Services, and Labor, among others, attendedthese meetings and listened to people express their concerns to theagencies specifically responsible for ensuring their economic andsocial rights.6' Sarah Paoletti, senior coordinator of the UniversalPeriodic Review Project of the United States Human Rights Network,remarked, "These consultations marked the first time the governmenthad gone on the road to hear individuals' concerns about U.S. humanrights obligations and the first time federal agency representativesfrom both Washington, D.C., and the local or regional offices directlyparticipated in discussion on U.S. human rights obligations."6 2 Theconsultations are a milestone in the history of human rights in theUnited States, during which the government has largely conveyedthat human rights as relevant only to people in other countries, notto people here in the United States.

Notably, in its report, the United States discusses a full range ofrights from the Universal Declaration of Human Rights. 64 The reportdevotes one of its three sections on specific rights to the area of eco-nomic and social rights.65 This section is composed of ten paragraphsout of the total one hundred paragraphs in the report.66 It begins witha reference to President Roosevelt's 1941 "Four Freedoms" speech,specifically mentioning "freedom from want."6 7 This introductoryparagraph is followed by one paragraph on education, five paragraphs

tion 5/1, U.N. Doc. A/HRC/WG.6/9/USA/1 (Aug. 23, 2010) [hereinafter U.S.U.P.R. Report 2010].

60 Sarah H. Paoletti, Using the Universal Periodic Review to Advance Human Rights:What Happens in Geneva Must Not Stay in Geneva, 45 CLEARINGHOUSE REv. 268,270 (2011).

61 Id. at 270-71.62 Id. at 270.63 See id. at 270-71 (noting that the participation of government representa-

tives with responsibilities for economic and social rights within the UnitedStates was unprecedented as human rights issues are generally the domain ofthe State Department, which is concerned with the world beyond the UnitedStates).

64 See U.S. U.P.R. Report 2010, supra note 59.65 Id. paras. 67-76.66 Id.67 Id. para. 67.



on health, and three paragraphs on housing.68 Additionally, the sec-tion on equality also devotes six paragraphs to discussing equality atwork, in housing, and in education. 9 In comparison to the report'scoverage of other rights-two paragraphs on freedom of expression,70

three on freedom of thought, conscience, and religion,71 two on free-dom of association, 7 2 and five on political participation 7 3-the reportindicates no particular preference for civil and political rights overeconomic and social rights.

The submission of the report was followed by the review beforethe Human Rights Council in Geneva on November 5, 2010.74 Humanrights scholars and practitioners noted that both the consultationsand the report showed "a level of commitment not seen in prior Unit-ed Nations human rights reviews."7 Nonetheless, the report "fellshort of its stated promise of serving as 'a roadmap for our ongo-ing work within our democratic system to achieve lasting change."'7 6

Despite this positive shift, at the review the government relied largelyupon the U.S. Constitution, statutes, and policies, and failed to fullyacknowledge the significant gaps between the rights provided in lawand the reality on the ground.7

Following the November 5th proceeding, the Working Groupon the Universal Periodic Review issued a report with 228 recom-mendations for the United States.78 On March 8, 2011, the UnitedStates filed its response to these recommendations," and then on

68 Id. paras. 67-76.69 Id. paras. 43-49.70 See U.S. U.RR. Report 2010, supra note 59, paras. 17-18.71 See id. paras. 19-21.72 See id. paras. 22-23.73 See id. paras. 24-28.74 OHCHR, Universal Periodic Review-United States of America, OFF.OF THE

HIGH COMM'R FOR HUM. RTs., http://www.ohchr.org/EN/HRBodies/UPR/PAGES/USSession9.aspx (last visited Aug. 24, 2012).

75 Paoletti, supra note 60, at 271.76 Id. (quoting U.S. U.PR. Report 2010, supra note 59, para.7).77 Id. at 271-72.78 See U.N. Human Rights Council, Report of the Working Group on the Universal Peri-

odic Review: United States of America, U.N. Doc. A/HRC/16/11 (Jan. 4, 2011)[hereinafter U.PR. Working Group Report].

79 See U.N. Human Rights Council, Report of the Working Group on the UniversalPeriodic Review: United States of America, Addendum: Views on Conclusions and/orRecommendations, Voluntary Commitments and Replies Presented by the State UnderReview, U.N. Doc. A/HRC/16/1 1/Add.1 (Mar. 8, 2011) [hereinafter U.S. U.RR.Response].

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March 18th, U.S. representatives returned to Geneva to present itsposition.o In the area of economic and social rights, the governmentaccepted a remarkable number of recommendations. Specifically, thegovernment accepted without reservation that it has the followingobligations:

* To "promote equal socio-economic as well as edu-cation opportunities for all both in law and in fact,regardless of their ethnicity, race, religion, nationalorigin, gender or disability"8 1

* To take further measures "in the areas of economic andsocial rights for women and minorities, including pro-viding equal access to decent work and reducing thenumber of homeless people"8 2

* To " [c] ontinue its efforts in the domain of access tohousing, vital for the realization of several other rights,in order to meet the needs for adequate housing atan affordable price for all segments of the Americansociety""

* To "[p]ersevere in the strengthening of its aid to devel-opment, considered as fundamental, in particular theassistance and relief in case of natural disasters .... "8 4

Additionally, the government accepted two other recommendationswith some qualification:

* To "[e] nsure the realization of the rights to food andhealth of all who live in its territory""

* To " [e]xpand its social protection coverage . ".. ."86

With respect to the rights to food and health, the governmentnoted that it is not a party to the ICESCR, and accordingly under-stood the references to these rights to refer to other instruments that

80 Paoletti, supra note 60, at 273.81 U.S. U.RR. Response, supra note 79, para. 19 (referring to U.P.R. Working Group

Report, supra note 78, para. 92.109).82 Id. (referring to U.PR. Working Group Report, supra note 78, para. 92.113).83 Id. (referring to U.RR. Working Group Report, supra note 78, para. 92.197).84 Id. (referring to U.RR. Working Group Report, supra note 78, para. 92.226).85 Id. (referring to U.RR. Working Group Report, supra note 78, para. 92.195).86 Id. (referring to U.RR. Working Group Report, supra note 78, para. 92.196).

380



it has accepted." It also noted that it understood "that these rightsare to be realized progressively."8 With respect to social protectioncoverage, the government explained that it seeks to improve the safe-ty net that it already provides. Overall, these statements appear to befairly significant steps forward on economic and social rights-sim-ply because the government recognized that it has obligations forthese rights within its own borders. In particular, the governmentacknowledged that it has an obligation to progressively realize therights to food and health-and expressed this in terms of "rights."It also accepted obligations for expanding social protection cover-age, meeting the needs for adequate housing, and improving equalaccess to decent work.

Assistant Secretary Michael Posner of the Bureau of Democ-racy, Human Rights, and Labor reiterated these commitments onMarch 24, 2011, at the Annual Meeting of the American Society ofInternational I w in that speech, Posner stated that "[tlhe Obamaadministration takes a holistic approach to human rights, democra-cy and development." 9 Further, he maintained:

[W]e will push back against the fallacy that countries maysubstitute human rights they like for human rights theydislike, by granting either economic or political rights. Toassert that a population is not "ready" for universal rightsis to misunderstand the inherent nature of these rights andthe basic obligations of government. All Four Freedomsare key to the Obama administration's approach to humanrights, national security and sustainable global prosperity. 0

By embracing a "holistic approach," committing to all Four Free-doms, and acknowledging obligations for economic and socialrights-including the rights to food and health-the government tooksignificant steps forward.

The government's new understanding of its obligations for eco-nomic and social rights arose in the context of the U.N. UniversalPeriodic Review under which the record of the United States onimplementation of economic and social rights at home was subjectto scrutiny. In this sense, the U.N. is monitoring the implementation

87 U.S. U.RR. Response, supra note 79, para. 19 (referring to U.P.R. Working GroupReport, supra note 78, para. 92.226).

88 Id.89 Posner, supra note 53.90 Id.

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of economic and social rights in the United States, and the UniversalPeriodic Review is providing the opportunity for people in the UnitedStates to hold their government accountable for all its human rightsobligations under the Universal Declaration of Human Rights. Likethe reporting procedure under the ICESCR, the potential effective-ness of the review "clearly lies less in the formal exchange betweenthe Committee [or in this case the Human Rights Council] and thestate party and more in the mobilization of domestic political andother forces to participate in monitoring government policies andproviding detailed critique ... of the government's own assessment ofthe situation."" Certainly, in this way, the Universal Periodic Reviewwas successful.

B. U.S. Missions of the United Nations Special Procedures 92

The Human Rights Council (and previously the Commission onHuman Rights) has also created the Special Procedures to investi-gate and respond to particular human rights themes and concerns inparticular countries. 93 There are currently ten country-specific man-dates 94 and thirty-five thematic mandates.9 5 Several of the thematicmandates address economic and social rights, including the SpecialRapporteurs on the rights to education, health, food, housing, and

91 Alston, U.S. Ratification of CESCR, supra note 55, at 371.92 This section on the Special Procedures draws upon Gillian MacNaughton,

Human Rights Frameworks, Strategies, and Tools for the Poverty Lawyer's Toolbox,44 CLEARINGHOUSE REv. 437, 441-43 (2011) [hereinafter MacNaughton,Human Rights Frameworks].

93 See U.N. SPECIAL PROCEDURES: FACTS AND FIGURES 2010, supra note 49,at 1. The predecessors to the Human Rights Council and its Advisory Com-mittee were the Commission on Human Rights and Sub-Commission on thePromotion and Protection of Human Rights. See supra text accompanying note56.

94 See OHCHR, Special Procedures Assumed by the Human Rights Council, CountryMandates (May 1, 2012), http://www.ohchr.org/EN/HRBodies/SP/Pages/Countries.aspx. These are Cambodia, C6te D'Ivoire, Democratic People'sRepublic of Korea, Haiti, the Islamic Republic of Iran, Myanmar, the Pales-tinian territories occupied since 1967, Somalia, Sudan, and the Syrian ArabRepublic.

95 See OHCHR, Special Procedures Assumed by the Human Rights Council, Thematic Man-dates (May 1, 2012), http://www.ohchr.org/EN/HRBodies/SP/Pages/Themes.aspx (last visited July 2, 2012).

382



water, as well as the Independent Expert on extreme poverty.96 TheSpecial Procedures issue annual reports on the status of the enjoy-ment of the relevant rights globally, consider individual complaints,provide advice to governments, conduct studies on particular coun-tries, and engage in promotional activities to raise awareness abouthuman rights.97 Importantly, the Special Procedures must be invitedby a state's government before undertaking a mission to a country toinvestigate the human rights situation on the ground.98

Over the past decade, a number of thematic Special Procedureswith mandates on economic and social rights have undertaken mis-sions to the United States. In 2002, for example, Katarina Tomasevski,the U.N. Special Rapporteur on the Right to Education visited theUnited States, meeting with stakeholders in the fields of educationand human rights in Mississippi, Kansas, New York, and the Districtof Columbia." In her U.N. report on the right to education in theUnited States, Tomasevski conclided, "There is a desnprate need forhuman rights education, as this term tends to be used only with ref-erence to other countries." 00 She found that, in the United States,"there is little knowledge of the human right to education, humanrights in education or enhancing human rights through education." 01

Moreover, she concluded that, "[t]he rule of inverse proportion reigns,.and schools and teachers facing the greatest challenge are providedthe least support." 10 2

In 2005, Arjun Sengupta, the Independent Expert on ExtremePoverty undertook a mission to the United States.10 In his report, he

96 See Christophe Golay, Claire Mahon & loana Cismas, The Impact of the U.N. Spe-cial Procedures on the Development and Implementation ofEconomic, Social and CulturalRights, 15 INT'L J. OF Hum. RTs. 299, 299 (2011).

97 See, e.g., U.N. SPECIAL PROCEDURES: FACTS AND FIGURES 2010, supra note

49.98 See id. at 11. Currently, seventy-eight countries have standing invitations to

the U.N. Special Procedures. Id. at 12. The United States is not one of theseseventy-eight countries. Id.

99 See Special Rapporteur on the Right to Education, Mission to the United States ofAmerica (24 Sept.-10 Oct. 2001), U.N. Doc. E/CN.4/2002/60/Add.1 (Jan. 17,2002) (by Katarina Tomasevski).

100 Id. para. 80.101 Id.102 Id. para. 84.103 Independent Expert on Human Rights and Extreme Poverty, Human Rights and

Extreme Poverty, Comm'n on Human Rights, U.N. Doc. E/CN.4/2006/43/Add. 1(Mar. 27, 2006) (by Arjun Sengupta).

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observed, "Despite the economic wealth of the United States and theefforts of the Government, the poverty rate remains high compared toother rich nations and there is no evidence that the incidence of pov-erty, and especially extreme poverty, is on the decrease."1 0 4 Senguptaalso concluded that the United States has "no national anti-povertylegislation," only a limited "patchwork of different laws."10 Further,he noted that the government had not remedied the "risk of extremepoverty" to vulnerable groups, such as "African Americans, Hispanics,immigrants and women single-headed households."106 Important-ly, he concluded that "if the United States adopted a comprehensivenational strategy and programmes based on human rights princi-ples it would be possible to reduce poverty and eradicate extremepoverty."107

In 2009, Raquel Rolnick, the Special Rapporteur on the Rightto Adequate Housing, undertook a mission to the United States. 08

In her report, she expressed "deep concern about the millions ofpeople living in the United States today who face serious challeng-es in accessing affordable and adequate housing, issues long facedby the poorest people and today affecting a greater proportion ofsociety."' 09 Rolnick noted that increasing numbers of working fami-lies and individuals find themselves living on the streets, in shelters,or in transitional housing with friends and family.110 In view of theaffordable housing crisis, the Special Rapporteur recommended thatthe government: (1) increase opportunities for dialogue with civilsociety organizations; (2) put an immediate moratorium on demoli-tion of public housing until one-for-one housing is secured and theright to return is guaranteed to all residents; (3) assign more resourc-es to Section 8 housing vouchers; (4) introduce further measuresto prevent foreclosures; and (5) develop constructive alternatives tocriminalization of homelessness."'

104 Id. at 2.105 Id. para. 84.106 Id. at 2.107 Id.108 See Special Rapporteur on the Right to Adequate Housing, Mission to the United

States ofAmerica (22 Oct.-8 Nov. 2009), Human Rights Council, U.N. Doc. No.A/HRC/13/20/Add.4 (Feb. 12, 2010) (by Raquel Rolnick).

109 Id. para. 79.110 Id.111 Id. paras. 82, 84, 87, 90, 94-95.

384 Gillian MacNaughton.& Mariah McGill



Most recently, Catarina de Albuqerque, the Special Rapporteuron the Human Rights to Safe Drinking Water and Sanitation, under-took a mission to the United States in March 201 1.112 She found that

"[t] he United States has aging water and wastewater systems, withdecreasing investment in research and development, coupled withan increase in [ ] population."11 3 Further, she noted that, despitenear universal access to water and sanitation in the United States,the poorest and the most marginalized do not enjoy adequate andsafe water and sanitation.11 4 Studies in some areas have shown that"water shut-off policies disproportionately impact marginalized per-sons along race, class and gender."I Additionally, she noted that theEPA found in its 2010 assessment that "92 per cent of people wereserved by community water systems that met applicable health-baseddrinking water standards."116 Among other things, the Special Rap-porteur recommended that the United States develop a national waterpolicy and plan of action, as well as make more concerted efforts toreach the poorest segments of the population.' 7

Like the Universal Periodic Review, visits by the Special Pro-cedures are helpful in raising awareness of human rights amonggovernment officials and people affected by the absence of econom-ic and social rights, and in providing a forum to initiate dialoguebetween the government and civil society on the human rights situ-,ation in the country. Further, each visit results in a U.N. report uponwhich civil society organizations can base further advocacy."8s Notably,

112 Special Rapporteur on the Human Right to Safe Drinking Water and Sanita-tion, Mission to the United States ofAmerica (22 Feb.-4 Mar. 2011), Human RightsCouncil, U.N. Doc. A/HRC/18/33/Add.4 (Aug. 2, 2011) (by Catarina de Albu-querque).

113 Id. para. 16.114 Id. paras. 18-19.115 Id. para. 50.116 Id. para. 30.117 Id. para. 88-89.118 The National Law Center on Homelessness and Poverty (NLCHP), for example,

was closely involved in the 2009 visit by the U.N. Special Rapporteur on theRight to Adequate Housing, holding a National Forum on the Human Rightto Housing in Washington, DC, on the final two days of her visit. NationalLaw Center on Homelessness and Poverty (NLCHP), U.N. Rapporteur Visit tothe United States, NAT'L LAW CTR. ON HOMELESSNESS & POVERTY (Oct. 20,2009), http://www.nlchp.org/news.cfm?id= 115. NLCHP also provides adviceon using the Special Rapporteur's U.N. report for advocacy on housing rights.The U.N. reports, news reports on the Special Rapporteur's mission, andadvice for follow-up activities are available at Street Lawyer: Legal Tools for Eco-

VOL. 4 No. 2 385


over the past decade, four Special Procedures on economic and socialrights came on missions to the United States-by invitation of thenational government. Just as the government acknowledged its obli-gations for economic and social rights during the Universal PeriodicReview, it has acknowledged these obligations repeatedly by hostingthese Special Procedures. Via both mechanisms, the Charter-basedbodies are monitoring the implementation of economic and socialrights in the United States, and the government is participating inthese monitoring processes. There is no doubt that the governmentcould do much more to respect, protect, and fulfill human rights,especially economic and social rights."9 Nonetheless, the evidenceover the last decade indicates that the United States seems to beheading back in the direction of respecting, protecting, and fulfillingthe full array of rights set out in the holistic framework of the Uni-versal Declaration of Human Rights.

IV. State-Level Implementation of Economic and Social Rights

A. Human Rights in State Constitutions, Courts, andLegislatures

Implementation of international human rights norms and stan-dards is also possible at the sub-national level. 12 0 The U.S. Senatehas noted that states and localities have a significant role to play incomplying with human rights treaty obligations under the UnitedStates' federalist system. 12 1 Importantly, state constitutions are oftenmore friendly than the Federal Constitution to economic, social, andcultural rights. Most state constitutions assume responsibility forpromoting the general welfare of state residents. 12 2 Further, all stateconstitutions guarantee a right to public education, and almost one-

nomicJustice, THE NAT'L LAW CTR. ON HOMELESSNESS & POVERTY, http://wiki.nlchp.org/display/Manual/Special + Rapporteur+ on+the+Right+to+Adequate+Housing+Visit+2009 (last visited July 1, 2012).

119 In particular, the government could ratify the ICESCR and the Convention onthe Rights of the Child.

120 Lewis, supra note 5, at 101.121 Risa Kaufman, State and Local Commissions as Sites for Domestic Human Rights

Implementation, in HUMAN RIGHTS IN THE UNITED STATES: BEYOND

EXCEPTIONALISM 89, 90 (Shareen Hertel & Kathryn Libal eds., 2011) [here-inafter Kaufman, State and Local Commissions].

122 Barbara Stark, Economic Rights in the United States and International Human RightsLaw: Toward an Entirely New Strategy, 44 HASTINGs L.J. 79, 92 (1992).




third of state constitutions recognize some role for government inpromoting and protecting public health. 123

State courts also play an important role in the human rightsimplementation process. Advocates have begun making humanrights-based arguments in state courts and are finding state courtjudges to be increasingly receptive.12 4 The United States Constitu-tion provides that ratified treaties are the "supreme Law of the Land"and are binding on state judges.125 Thus, for example, state courtjudges deciding international child custody disputes must considerboth state law and Article 20 of the Hague Convention on the CivilAspects of International Child abduction in making their decisions.126

State court judges may also turn to human rights treaties forinterpretive guidance regardless of whether those treaties have beenratified. 27 For example, the Missouri Supreme Court cited to the Con-vention on the Rights of the Child when it struck down the juveniledeath nenalty, despite the fact that this convention is not binding inthe United States.128 International human rights treaties can be par-ticularly useful for state jurists as they attempt to analyze the positiverights embedded in state constitutions. 29 Because the Federal Con-stitution does not recognize a right to education or the responsibility

123 Jessica Schultz, Economic and Social Rights in the United States: An Overview of theDomestic Legal Framework, ii HUM. RTs. BRIEF 1 (2003); Elizabeth Weeks Leon-ard, State Constitutionalism and the Right to Health, 12 U. PA. J. CONST. L. 1325,

1328 (2oo).124 See Serrette, supra note 17; The Opportunity Agenda, supra note 17; Martha F.

Davis, Human Rights in the Trenches: Using Internationalfuman Rights Law in "Every-day" LegalAid Cases, 41 CLEARINGHOUSE REV. 414, 416 (2007); see also HUMAN

RIGHTS INST. ET AL., HUMAN RIGHTS, SOCIAL JUSTICE AND STATE LAW:

A MANUAL FOR CREATIVE LAWYERING (2008) available at http://www.north-eastern.edu/law/pdfs/academics/phrge-manual08.pdf.

125 Martha E Davis, Thinking Globally, Acting Locally: States, Municipalities, and Inter-national Human Rights, in BRINGING HUMAN RIGHTS HOME: A HISTORY OFHUMAN RIGHTS IN THE UNITED STATES 258, 276 (Cynthia Soohoo et al.eds., 2008) [hereinafter Davis, Thinking Globally] (citing U.S. Const. art. VI, cl.2.).

126 Serrette, supra note 17, at 239.127 The Opportunity Agenda, supra note 17, at 235 (citing Penny White, Legal,

Political, and Ethical Hurdles to Applying International Human Rights Law in the StateCourts of the United States (and Arguments for Scaling Them), 71 U. CIN. L. REV.937, 950-51, 967-69 (2003)).

128 Id. at 233 (citing Simmons v. Roper, 112 S.W3d 397, 411 (Mo. 2003), aff'd,543 U.S. 551 (2005)).

129 Johanna Kalb, Human Rights Treaties in State Courts: The International Prospects ofState Constitutionalism After Medellin, 115 PENN ST. L. REV. 1051, 1055 (2011)

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of government to promote and protect public health, internationalhuman rights treaties may be helpful to state jurists as they attemptto define these rights that have no federal analogue.3 0 The SupremeCourt of Appeals of West Virginia, for example, considered the Uni-versal Declaration of Human Rights in its decision to recognize thefundamental right to education. 13 1

State legislatures have also recognized human rights in both for-eign and domestic contexts. For example, in the 1970s, many statespassed legislation aimed at ending apartheid in South Africa by cur-tailing private investment in corporations doing business with theregime.13 2 Twenty-three states, fourteen counties, and eighty cit-ies enacted divestment legislation, and this local-level activism iswidely seen as an important factor in the downfall of the apartheidregime.133 Further, many states have created human rights commis-sions that, in addition to ending racial discrimination and promotingequal opportunity, are also working to implement human rights stan-dards at the local level.' 34 For example, in 2007, the Washington StateHuman Rights Commission embarked on a project to address a hous-ing shortage for farm workers in the state.135 The Commission reliedupon human rights principles drawn from the Universal Declarationof Human Rights in addition to the state's anti-discrimination statuteand federal fair housing laws to make its final recommendations.136

State and local agencies also play a valuable role in monitoringthe realization of human rights and advancing human rights imple-mentation processes." 7 Indeed, the Vienna Convention on the Law

(citing Martha F. Davis, The Spirit of Our Times: State Constitutions and Internation-al Human Rights, 3o N.Y.U. REV. L. & Soc. CHANGE 359, 360 (20o6)).

130 Id.131 Pauley v. Kelly, 255 S.E.2d 859, 864 n.5 (WVa. 1979) (UDHR proclaims "edu-

cation to be a fundamental right of everyone, at least on this planet").132 Davis, Thinking Globally, supra note 125, at 261.133 See generally, id. In the 1990s, states and cities also attempted to divest in Bur-

ma but these efforts were struck down by the United States Supreme Courtin Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373-74 (2000).

134 Kaufman, State and Local Commissions, supra note 121, at 91-92.135 Id. at 93.136 Id.137 COLUMBIA LAW SCH. HUMAN RIGHTS INST., IMPLEMENTING RECOM-

MENDATIONS FROM THE UNIVERSAL PERIODIC REVIEw: A TOOLKIT

FOR STATE AND LOCAL HUMAN RIGHTS AND HUMAN RELATIONS COM-

MISSIONS 4 (2011), available at http://www.law.columbia.edu/ipimages/HumanRightsInstitute/U.PR. %20Toolkit.pdf.

388


of Treaties recognizes that federal governments may need to delegatesome responsibilities for human rights implementation to state andlocal governments.' Specifically, state and local agencies can advancethe enjoyment of human rights by educating local communities, usinghuman rights principles in local advocacy work, investigating humanrights complaints, and integrating human rights standards into localpolicy and practice.13 1

These examples demonstrate that U.S. cities and states areinvolved in implementing human rights in a variety of ways. This arti-cle focuses on two examples of human rights implementation at thesub-national level, one by a state legislature and one by a city council.

B. Case Study: The Vermont Legislature Adopts HumanRights Principles

In 2010, the State of Vermont became the first state to use anuman rights framework to design a new health care system.- Ver-mont's human rights-based health care reform efforts began withthe Vermont Workers' Center's grassroots campaign "Healthcare isa Human Right" that was launched in 2008.141 The campaign used ahuman rights framework to mobilize Vermonters to support universalhealth care and to ensure that human rights principles were incorpo-rated into Vermont health care law.14 2 The human rights principles setforth by the campaign were universality, equity, accountability, trans-parency, and participation.143 Specifically, the campaign asserted that

138 See id.; see also Vienna Convention on the Law of Treaties, supra note 53, art. 29.139 COLUMBIA LAW SCH. HUMAN RIGHTS INST., supra note 137, at 4.140 No. 128. An Act Relating to Health Care Financing and Universal Access to

Health Care in Vermont, 2010 Vt. Acts & Resolves 305, secs. 2-3 [hereinafterAct 128]; see also Mariah McGill, A Human Right to Health Care in the State of Ver-mont, 37 VT. B. J. 28, 29 (2011) (highlighting the link between human rightsprinciples and Vermont's health care legislation).

141 VT. WORKERS' CTR., VOICES OF VERMONT'S ECONOMIC CRISIS: THE

CHALLENGE TO PUT PEOPLE FIRST (2011), available at http://www.worker-scenter.org/201 1 -preliminary-human-rights-report.

142 Human Rights Principles for Health Care, VT. WORKERS' CTR, http://www.work-erscenter.org/human-rights-principles-for-healthcare (last visited Jul. 3, 2012).

143 Building a Grassroots Movement for the Human Right to Healthcare, VT. WORKERS'

CTR., http://www.workerscenter.org/hchrhistory (last visited Jul. 3, 2012)[hereinafter Building a Grassroots Movement]. Similar human rights principlesare enumerated in numerous documents on the human rights-based approach.

See, e.g., The Human Rights Based Approach to Development Cooperation: Towards aCommon Understanding Among U.N. Agencies, HRBA PORTAL, http://hrbaportal.

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every Vermont resident was entitled to comprehensive, quality healthcare; that systemic barriers must not prevent people from accessingnecessary health care; that the health care system must be transpar-ent in design, efficient in operation, and accountable to the people itserves; and that it was the responsibility of the government to ensurea health care system that satisfies these human rights principles.'"Vermonters and their legislators found this to be a compelling frame-work for health care reform.14s

On May 27, 2010, the Vermont Legislature passed Act 128, 146

incorporating this human rights framework into Vermont's newhealth care law. Act 128 created a roadmap for designing and imple-menting a universal health care system. 4 7 It also established a healthcare commission responsible for hiring an independent consultantto design three universal health care plans that each satisfied humanrights principles.14 8

Act 128 does not recognize health care as a human right oruse the term "human rights."149 Nonetheless, it incorporates all fivehuman rights principles promoted by the "Healthcare is a HumanRight" campaign. For example, the Act states that it "is the policy ofthe State of Vermont to ensure universal access to ... comprehensive,quality health care," thus recognizing the human rights principle ofuniversality.15 0 The Act addresses the principle of equity by statingthat "[s]ystemic barriers must not prevent people from accessinghealthcare."' By requiring any health care plan to be transparent,

org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies (last visited July 28, 2012)(listing these human rights principles: universality and inalienability; indivisi-bility, inter-dependence and inter-relatedness; equality and non-discrimination;participation and inclusion; accountability and the rule of law); OHCHR, Prin-ciples and Guidelines for a Human Rights Approach to Poverty Reduction Strategies, U.N.Doc. HR/PUB/06/12 (2oo6), available at http://www.ohchr.org/Documents/Publications/PovertyStrategiesen.pdf (listing among its principles: equalityand nondiscrimination, participation, monitoring and accountability).

144 Building a Grassroots Movement, supra note 143.145 Mariah McGill, Using Human Rights to Move Beyond the Politically Possible, 44

CLEARINGHOUSE REV. 459, 461-62 (2011) [hereinafter McGill, Using HumanRights].

146 Act 128, sec. 2-3, 2010 Vt. Acts & Resolves 305, 307-08.147 Id. sec. 6, 2010 Vt. Acts & Resolves 305, 309-15.148 Id. secs. 4-6, 2010 Vt. Acts & Resolves 305, 308-15.149 McGill, Using Human Rights, supra note 145, at 463.150 Act 128, sec. 2(1), 2010 Vt. Acts & Resolves 305, 307.151 Id.



efficient, and accountable to the people, the Act ensures that the prin-ciples of transparency and accountability are satisfied. 15 2 The Act alsomakes it the responsibility of the state to ensure that Vermonters areable to participate in the design, implementation, and accountabilitymechanisms of the healthcare system and establishes that it is thegovernment's responsibility to ensure that the health care systemsatisfies all these principles."s'

In 2010, the newly established Vermont Health Care Com-mission selected Dr. William Hsiao of the Harvard School of PublicHealth to design the three health care plans.154 Dr. Hsiao had previ-ously designed Taiwan's successful single-payer health care system,and he led a team of consultants that included Dr. Jonathan Gruberof MIT, the architect of the Massachusetts health care reform legisla-tion, to design the Vermont reforms.155 In February 2011, Dr. Hsiaopresented three plans for universal health care to the Vermont leg-islature. 15 6 The first plan was a government-run single-payer systemwith a uniform system of payment and a standard benefits packagefor all Vermonters.s 7 The second plan was a "public option" to beadministered by the government that would compete with privateinsurance plans on a health care exchange.' 58 The third plan was apublic-private single-payer system with a standard benefits packageand a uniform payment system." 9 Dr. Hsaio recommended that Ver-mont adopt the third option.'6 0

In the 2011 legislative session, the Vermont Legislature passedAct 48, "An Act Relating to a Universal and Unified Health System"

152 Id. sec. 2(2), 2010 Vt. Acts & Resolves 305, 307.153 Id. secs. 2(2), (9), 2010 Vt. Acts & Resolves 305, 307.154 See Memorandum from Jim Hester, Dir., Health Care Reform Comm'n, to All

Interested Parties (June 29, 2010), available at http://www.leg.state.vt.us/jfo/Healthcare/Contractor%20Selection%20-%2OHealth%2OCare%20Reform%20Design%20Study.pdf.

155 Ann Galloway, Vermont Commission Selects Hsiao for Health Care Design Study, VTDIGGER (June 29, 2010), http://vtdigger.org/2010/06/29/vermont-commis-sion-selects-hsiao-for-health-care-design-study/.

156 See WILLIAM HsIAO ET AL., ACT 128 HEALTH SYSTEM REFORM DESIGN:

ACHIEVING AFFORDABLE UNIVERSAL HEALTH CARE IN VERMONT (2011),available at hrtp://www.leg.state.vt.us/jfo/healthcare/FINAL%20REPORT%20Hsiao%20Final%20Report%20-%2017%20February%20201 1_3.pdf.

157 Id. at x.158 Id. at xi.159 Id. at xii.160 Id. at xviii.

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that was based in large part upon Dr. Hsaio's third plan.' It alsoretained the human rights principles in Act 128.162 Act 48 createsa framework for designing and implementing a universal healthcare system known as Green Mountain Care. 16 The first step in theimplementation process will be the establishment of a health insur-ance exchange as required under the federal Patient Protection andAffordable Care Act (PPACA) passed by Congress in March 2010.164Under the federal legislation, all states must create health insuranceexchanges that will enable consumers to purchase private insurancepolicies in a transparent marketplace. 165 Vermonters will begin usingthis exchange by 2014.166

The second step in the implementation process will be to designthe single-payer Green Mountain Care.16 7 Under Act 48, GreenMountain Care must provide "comprehensive, affordable . . . pub-licly-financed health care coverage for all Vermont residents" as a

"public good."' 68 An independent board is responsible for design-ing and implementing the plan and is currently working to definethe benefits package, create a three-year budget, and determine thefinancing mechanisms for the new health care system.'6 9 In December2011, the government held a series of public meetings to get feed-back from Vermonters on how the new health care system should

161 No. 48. An Act Relating to a Universal and Unified Health System, 2011 Vt.Acts & Resolves 239 [hereinafter Act 48]; see HsIAO ET AL., supra note 156,at xviii.

162 See Act 48, 2011 Vt. Acts & Resolves 239; Act 128, sec. 2, 2010 Vt. Acts &Resolves 305, 307.

163 See Act 48, sec. 1, 2011 Vt. Acts & Resolves 239, 240.164 See Act 48, sec. 4, 2011 Vt. Acts & Resolves 239, 259 (codified at VT. STAT.

ANN. tit. 33, 5 1801(b) (2012)).165 See Act 48, sec. 4, 2011 Vt. Acts & Resolves 239, 259 (codified at VT. STAT.

ANN. tit. 33, S 1801 (2012)).166 Act 48, sec. 4, 2011 Vt. Acts & Resolves 239, 260 (codified at VT. STAT. ANN.

tit. 33, 5 1803(b) (1) (A) (2012)).167 Act 48, sec. 4, 2011 Vt. Acts & Resolves 239, 266 (codified at VT. STAT. ANN.

tit. 33, S 1822 (2012)).168 See Act 48, sec. 1(a), 2011 Vt. Acts & Resolves 239, 240. Thedanguage declaring

health care to be a "public good" rather than a human right was a compromisereached to avoid a veto of Act 128 by Republican Governor James Douglas in2010. See McGill, Using Human Rights, supra note 145, at 461.

169 Our Vision, GREEN MOUNTAIN CARE BOARD, http://healthcare.vermont.gov/green mountaincareboard (last visited July 5, 2012).

392



be financed.170 The data from these meetings will be used to developthe new financing system, which will be presented to the Vermontlegislature in 2013.171

Importantly, the Green Mountain Care Board must comply withAct 48's human rights principles of universality, equity, transparency,accountability, and participation in the design and implementationof the new system.17 2 While many features of Green Mountain Carehave not yet been determined, it is clear that human rights principleshave already played a key role in the roadmap for health care reformin Vermont. Green Mountain Care will meet the principle of uni-versality by providing "comprehensive, affordable, publicly-financed"health care coverage for all Vermont residents. 7 In order to meet thehuman rights principle of equity, the system must be both equitablein access and in financing.7 4 The Green Mountain Care system willmeet the principle of equity in access by providing health care in an

"equitable manner" without regard to income, assets, or health sta-tus. 17s Act 48 also requires that the Green Mountain Care financingplan be developed consistent with the principles of equity.1 6 Further,the Green Mountain Care system will be designed and implementedby an independent board that must report to the Vermont Legisla-ture and the people of Vermont. 7 7 The independence of the board,along with the requirement that health care financing be transpar-ent, helps to satisfy the transparency and accountability principles.'17

Finally, Act 48 requires that the Green Mountain Care Board pro-

170 Alan Panebaker, Shumlin Administration: A Game of Monopoly to Determine Pref-erences for Health Care Financing System, VT DIGGER (Dec. 16, 2011), http://vtdigger.org/2011/12/16/shumlin-administration-takes-pulse-of-businesses-preferences-for-health-care-financing-system/.

171 Id.172 Act 48, sec. 1(a), 2011 Vt. Acts & Resolves 239, 240; Act 48, sec. 3, 2011 Vt.

Acts & Resolves 239, 244 (codified at VT. STAT. ANN. tit. 18, S 9371 (2012)).173 Human Rights Assessment of Act 48 (formerly H.202) Signed into Law on May 26,

2011, VT. WORKERS' CTR. 1 (2011), http://www.nesri.org/sites/default/files/Assessment%20Chart%2OAct%2048.pdf [hereinafter Human Rights AssessmentofAct 48].

174 Id.175 Act 48, sec. 4, 2011 Vt. Acts & Resolves 239, 266 (codified at VT. STAT. ANN.

tit. 33, S 1821 (2012)).176 Act 48, sec. 3, 2011 Vt. Acts & Resolves 239, 245 (codified at VT. STAT. ANN.

tit. 18, S 9371(11) (2012)).177 Act 48, sec. 1(a), 2011 Vt. Acts & Resolves 239, 240; Human Rights Assessment

ofAct 48, supra note 173, at 2.178 Act 48, sec. la(3), 2011 Vt. Acts & Resolves 239, 240.

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vide a process for public input with regards to decisions about thefinancing mechanism and the benefits package, which addresses theprinciple of participation.1 '9

The importance of using human rights principles to guidehealth care reform was repeatedly demonstrated during the cam-paign. For example, in the final days before the passage of Act 48, anamendment was added to the bill to exclude undocumented workersfrom participating in the new health care system.180 Campaign orga-nizers reminded Vermonters that human rights are universal andthat all people are entitled to health care regardless of immigrationstatus.'18 The simplicity and resonance of these human rights prin-ciples-already enacted in Act 128 in 2010-enabled the campaignto mobilize Vermonters to pressure the legislature to strip the exclu-sionary language from the final bill.'12

. Nonetheless, there are some concerns regarding whether theGreen Mountain Care system will ensure that all Vermonters receivehealth care as a human right. For example, the universality of GreenMountain Care depends on a waiver and funding from the federal gov-ernment that have not yet been granted."' Even if Vermont were toreceive the funding and the waiver, it is likely the system would notgo into effect until 2017, leaving thousands of Vermonters withouthealth care in the meantime.'8 4 Moreover, the fact that Vermonterswill be required to purchase private health insurance plans and paysubstantial premiums, co-pays, and deductibles during the healthinsurance exchange phase of the plan does not satisfy the principlesof equity in access or financing. 185

It is not clear when Vermont will be able to implement the uni-versal Green Mountain Care system. The federal legislation allowsstates to seek waivers from the federal Department of Health and

179 Act 48, sec. 3, 2011 Vt. Acts & Resolves 239, 252 (codified at VT. STAT. ANN.

tit. 18, S 9378 (2012)); Human Rights Assessment ofAct 48, supra note 173, at 2.180 Shay Totten, Show Us Your Papers!, SEVEN DAYS (May 4, 2011), http://www.7dvt.

com/20 11 show-us-your-papers.181 James Haslam, We Are Not Arizona!, VT. WORKERS' CTR. (Apr. 26, 2011),

http://www.workerscenter.org/we-are-notarizona.182 Id.; Anne Galloway, Lawmakers Call for Study of Migrant Worker Health Care,

VT DIGGER (May 3, 2011), http://vtdigger.org/2011/05/03/health-care-conference-committee-hammers-out-details-on-day-one/.

183 Chris Garofolo, Vt. Lawmakers Push for Health Care Waiver, BRATTLEBORO

REFORMER (Vt.), Jan. 19, 2011, at 1.184 Human Rights Assessment ofAct 48, supra note 173, at 1.185 Id.



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Human Services to operate alternative programs in lieu of the fed-eral health benefit exchange program beginning in the year 2017.186Nonetheless, Vermont's congressional delegation is working towardobtaining a waiver for Vermont by 2014.187 Once Vermont receives awaiver, the health benefit exchange will be transformed into the uni-versal system of health care. Under Act 48, the universal health caresystem will go into effect 90 days after Vermont receives the feder-al waiver.188

Despite many challenges, Vermont's health care reform effortsdemonstrate that a human rights framework can be successfully usedto craft state-level legislation that promotes the enjoyment of humanrights by all. The Vermont example also shows the relevance thatinternational human rights principles may have on state-level law andpolicy debates regardless of whether the international human rightstreaties have been ratified or otherwise recognized at the federal level.

V. Local-Level Implementation of Economic and Social Rights

A. Human Rights Cities

Human rights implementation is also occurring at the munici-pal level.' 9 Dozens of U.S. cities have passed resolutions calling onthe United States to ratify the International Convention on the Elim-ination of All Forms of Discrimination Against Women (CEDAW).1s 0

Other cities have gone further and attempted to implement humanrights treaties at the local level. In 2009, the cities of Carrboro andChapel Hill, North Carolina passed resolutions adopting the Uni-

186 Ellen R. Shaffer, State Single Payer Waivers in HR 3590, CTR. FOR POL'Y ANAL-Ysis i (May 3, 2010), available at http://www.equalhealth.info/wp-content/uploads/state2singlepayeroptionsrevised5-13-10.doc.

187 Garofolo, supra note 183. See also Gillian MacNaughton, The Human Right toHealth Care in the United States, 45 CLEARINGHOUSE REv. 208, 214 (2011)(the PPACA deliberately prevents states that wish to provide universal andequal access to health care from doing so until at least 2017).

188 Act 48, sec. 4, 2011 Vt. Acts & Resolves 239, 266 (codified at VT. STAT. ANN.tit. 33, S 1822 (2012)).

189 Human Rights are also being implemented at the county level. See, e.g., Ros-lyn Solomon, Global Goes Local: Integrating Human Rights Principles into CountyHealth Care Reform Projects, 11 HEALTH & HUM. RTs. 105 (2009); Task Force onUniversal Access to Health Care, LEWIS & CLARK CNTY., MONT., http://www.co.lewis-clark.mt.us/departments/health/board-of-health/health-access-task-force.html (last visited July 5, 2012).

190 Davis, Thinking Globally, supra note 125, at 267.

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versal Declaration of Human Rights as guiding principles for citygovernance. 191 The same year, the City of Chicago adopted a resolu-tion in support of the United Nations Convention on the Right of theChild (CRC).1 92 The resolution calls upon the city to promote policiesand practices that comply with the principles of the CRC. 193 Theseresolutions appear to be largely symbolic at the moment. However,they could be used by grassroots advocacy campaigns in the futureto press for human rights implementation at the local level.

One of the most well known examples of successful city-levelimplementation is the CEDAW Ordinance in San Francisco, whichwas adopted in 1998. 114 San Francisco's CEDAW Ordinance obligatesall city and county government programs, agencies, and departmentsto take all necessary measures to prevent all forms of discriminationagainst all women and girls.s95 The Ordinance defines discrimina-tion broadly to include policies that have a discriminatory effect onwomen and girls.196 Additionally, the Ordinance requires that all citydepartments participate in human rights training and that select-ed city departments undergo a detailed gender analysis to identifydiscriminatory policies.1 7 To date, a gender analysis of seven citydepartments has been completed."'

191 Carrboro, N.C., Board of Aldermen, Resolution 89/2008-09 (2009), availableat www.ci.carrboro.nc.us/boa/Minutes/2009/04 21_2009.pdf ('Adopting theUniversal Declaration of Human Rights as Guiding Principles"); Chapel Hill,N.C., Town Council, Resolution 2009-11-23/R- 11 (2009), available at http://townhall.townofchapelhill.org/agendas/2009/11/ 2 3 /5p/5p- 2 0 0 9 -11-23_ri 1.pdf ('Adopting the Universal Declaration of Human Rights as Guiding Prin-ciples").

192 COLUMBIA LAW SCH. HUMAN RIGHTS INST. & INT'L ASS'N OF OFFI-

CIAL HUMAN RIGHTS AGENCIES, STATE AND LOCAL HUMAN RIGHTS

AGENCIES: RECOMMENDATIONS FOR ADVANCING OPPORTUNITY AND

EQUALITY THROUGH AN INTERNATIONAL HUMAN RIGHTS FRAMEWORK

9, 26 (2009), available at http://www.ncdsv.org/images/CNDHRAStateLoc-alHumanRightsAgenciesReport_2009.pdf.

193 Id. at 9.194 Id. at 8, 28.195 Id.196 Davis, Thinking Globally, supra note 125, at 269.197 Id.198 ANU MENON, S.F. DEP'T ON THE STATUS OF WOMEN, HUMAN RIGHTS

IN ACTION: SAN FRANCISCO's LOCAL IMPLEMENTATION OF THE UNITED

NATIONS' WOMEN'S TREATY (CEDAW) 4 (2010), available at http://www.sfgov3.org/Modules/ShowDocument.aspx?documentid=314.




Each department that has undergone a gender analysis hasidentified internal policies and practices that have had a discrimina-tory impact on women and have worked to resolve those issues.199

For example, after completing a gender analysis, the Departmentof Public Works "recognized the need to make specific efforts torecruit women into non-traditional employment positions" withinthe department.2 00 The gender analysis also made it clear that servicedelivery decisions often impacted women and men differently. 201 Itrevealed, for example, that decisions regarding the number and place-ment of curb cuts in the sidewalks had a disproportionate impact onwomen due to the fact that caregivers for the elderly and young chil-dren were predominantly women.2 0 2 An insufficient number of curbcuts made it more difficult for caregivers to navigate city sidewalkswhile pushing wheel chairs and strollers.20 3 San Francisco's CEDAWOrdinance demonstrates that local-level human rights implementa-tion can have a positive impact on residents' quality of life in a varietyof unexpected ways.

As enthusiasm for sub-national implementation has grown inthe United States, a few municipalities have become part of a humanrights movement involving dozens of cities around the globe. The

"Human Rights Cities" movement has sprung from the efforts of thePeople's Movement for Human Rights Learning, formerly the Peo-ple's Decade for Human Rights Education (PDHRE). 2 4 The PDHREasserts that the people of all countries must learn about human rightsand human rights frameworks for international human rights laws tobe effective.2 05 Once individuals are educated about their human rights,they are better able to assert those rights to make positive change. 20 6

The PDHRE envisions Human Rights Cities as places where ahuman rights framework is incorporated into local policies for the

199 Id. at 5-8.200 Id. at 5.201 Id. at 5.202 Id.203 MENON, supra note 198, at 5.204 STEPHEN P. MARKS ET AL., HUMAN RIGHTS CITIES: Civic ENGAGEMENT

FOR SOCIETAL DEVELOPMENT 46 (2008), available at http://www.pdhre.org/HumanRightsCities_Book.pdf. For an explanation regarding PDHRE's namechange, see About the People's Movement for Human Rights Learning, PEOPLE'SMOVEMENT FOR HUM. RTs. LEARNING, http://www.pdhre.org/about.html(last visited June 24, 2012).

205 MARKS ET AL., supra note 204, at 46.206 See id. at 38.

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purpose of improving the lives of residents.2 07 The process beginswith a community-wide dialogue among local residents, activists, pol-icy makers, and local officials for the purpose of educating everyoneabout human rights. 208 Through these local dialogues, communitymembers begin to internalize human rights principles and developa decision-making process that emphasizes transparency, account-ability, and equal participation for all. 2 09 The educational dialogueculminates in city-wide action plans to implement human rights prin-ciples at the local level.2 10 To date, over twenty cities around theworld-including three in the United States-have declared them-selves to be human rights cities.211

In 2008, Washington, D.C. became the first human rights cityin the United States when the city council adopted a human rightscity ordinance in celebration of the 60th anniversary of the Univer-sal Declaration of Human Rights. 2 12 Since the ordinance was passed,D.C. public schools have begun to incorporate human rights educa-tion into the curriculum.2 13 In April 2011, the City of Boston alsoadopted a resolution declaring itself to be a human rights city.2 14 OnSeptember 23, 2011, local activists held a forum to begin to strategizeways to further human rights in Boston. 2 15 Perhaps the best exam-ple of a human rights city in the United States is the City of Eugene,

207 PDHRE INT'L OFFICE ET AL., HUMAN RIGHTS LEARNING AND HUMAN

RIGHTS CITIES: ACHIEVEMENTS REPORT 3 (2007), http://www.pdhre.org/achievements-HR-cities-mar-07.pdf.

208 MARKS ET AL., supra note 204, at 45.209 Id. at 45-46.210 See id.211 SeePDHRE: Human Rights Communities, PEOPLE'S MOVEMENT FOR HUM. RTs.

LEARNING, http://www.pdhre.org/projects/hrcommun.html (last visitedApr. 25, 2012). In addition to the Human Rights Cities listed on the PDHREwebsite, as of 2007, three U.S. cities-Washington, D.C., Boston, Mass., andEugene, Or.-have declared themselves to be Human Rights Cities. See infranotes 214, 216, 218.

212 Washington, D.C., City Council, Resolution CER17-0461 (2008), available athttp://www.pdhre.org/DC-HRC-Resolution.pdf.

213 Karen Dolan, Human Rights City Toolkit, INST. FOR POL'Y STUD. (Mar. 26, 2009),http://www.ips-dc.org/articles/human rights city toolkit.

214 Bos., Mass., City Council, Resolution 0563 (2011) ("Proclaiming Boston as aHuman Rights City").

215 Shawn Musgrave, Forum on Building Boston into a Human Rights City Friday 9/23,OPEN MEDIA Bos. (Sept. 21, 2011), http://openmediaboston.org/node/1999.



which has begun to implement human rights norms and standardsat the local level.2 16

B. Case Study: Eugene, Oregon Becomes a "Human RightsCity"

Eugene is a small city with a population of approximately160,000 people. 2 17 Like many cities in the United States, Eugene hashad a human rights commission, composed of volunteers appointedby the Eugene City Council, for many years. 2 18 Like many "humanrights commissions" in the United States, however, the HumanRights Commission in Eugene focused primarily on civil rights, suchas eliminating discrimination in employment, housing, and access tocity services.219

Because the commission's work largely focused on civil rights,important economic, social, and cultural rights were left unad-

S220 Additionll fcus on I

meant that the commission was often reacting to problems ratherthan working proactively to address issues before they arose. 2 2 1 Fur-ther, the ordinance establishing the commission made it difficult forthe commission to address policies that had an unintentional dis-criminatory impact but were not overtly discriminatory.2 22

216 See History: Eugene, Oregon, and Local Implementation ofHuman Rights, HuM. RTS.CITY PROJECT, http://www.humanrightscity.com/history.html (last updatedDec. 22, 2011) [hereinafter History, HUM. RTS. CITY PROJECT].

217 Id.218 Human Rights Commission, CITY OF EUGENE, http://www.eugene-or.gov/index.

aspx?NID= 526 (last visited July 1, 2012).219 History, HUM. RTS. CITY PROJECT, supra note 216; see also Kaufman, State

and Local Commissions, supra note 121, at 91, 95 (many state and local humanrights commissions were originally created to address racial tension, discrim-ination, and civil rights violations); see generally, N.Y. CITY COMM'N ON HUM.RTS., http://www.nyc.gov/html/cchr/home.html (last visited Apr. 23, 2012);Bos. HUM. RTs. COMM'N, http://www.cityofboston.gov/civilrights/rights.asp (last visited Apr. 23, 2012); D.C. OFF. OF HUM. RTs., http://ohr.dc.gov/page/about-ohr (last visited Apr. 23, 2012).

220 See History, HUM. RTS. CITY PROJECT, supra note 216.221 SeeU.S. HUMAN RIGHTS FUND, PERFECTING OUR UNION: HUMAN RIGHTS

SUCCESS STORIES FROM ACROSS THE UNITED STATES 95 (2010), availableat http://www.justdetention.org/pdf/ushumanrightsfund.pdf.

222 Eugene,Or.,OrdinanceNo.19732,52.265(Nov.5,1990),availableathttp://ceapps.eugene-or.gov/portal/server.pt/gateway/PTARGS_0_0_5848_319_0_43/http%3B/cesrvlf02/CMOWeblink/0/doc/368176/Pagel.aspx (amending sec-tions 2.013, 2.109, 2.260,2.265, 2.270, 2.275, 2.280 of the Eugene Code). This

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To address these issues, in 2007, the commission began explor-ing ways that it could more fully incorporate international humanrights norms and standards into its work and into city government.223

The commission launched a "Human Rights City Project" that aimedto: (1) perform research on human rights initiatives in other munici-palities; (2) launch a community-wide dialogue on human rights andtheir relevance to the City of Eugene; and (3) create specific propos-als for the city council that would implement human rights at thecity level more broadly.2 2 4 This initiative began when Ken Neubeck,a local resident, read about the San Francisco CEDAW Ordinance.22 5

Neubeck was inspired by this idea and wanted to introduce humanrights to Eugene, as well.2 26 He began by inviting WILD, an organiza-tion that had played a pivotal role in the San Francisco ordinance, tolead a workshop on human rights implementation at the local level. 22 7

The first major challenge was educating the public and poli-cy makers about international human rights and the benefits thata human rights framework could have on local life. 228 The commis-sion partnered with local groups to hold a series of events includinghuman rights summits, panel discussions, and workshops, as well aswrite newspaper articles and participate in radio broadcasts. 229 Thecommission's Human Rights City Sub-Committee also held a seriesof trainings for commission members, volunteers, and local leaders.230 These events gave the commission an opportunity to inform thecommunity about the Universal Declaration of Human Rights andexplain how these international human rights principles could posi-tively impact the City of Eugene.23 1

The city grounded its human rights work on a framework set outin the Declaration. 2 32 Although many economic, social, and cultural

ordinance focused on investigating complaints of discrimination and ensuringcompliance with local, state, and federal anti-discrimination laws, rather thanon systemic changes.

223 COLUMBIA LAW SCH. HUMAN RIGHTS INST., supra note 137, at 9.224 Id.225 U.S. HUMAN RIGHTS FUND, supra note 221, at 95.226 Id.227 Id.228 History, HUM. RTS. CITY PROJECT, supra note 216.229 Id.230 Id.231 Id.232 CITY OF EUGENE, EQUITY & HUMAN RIGHTS , GLOSSARY OF TERMS 4

(2010), available at http://www.eugene-or.gov/DocumentCenter/Home/

400



rights are not recognized in U.S. law, these rights were incorporatedinto the shared vision of human rights developed by city officials andlocal residents. 3 The city provided.a glossary of human rights defi-nitions on its website and defined human rights as "the basic rightsand freedoms to which all humans are entitled ... such as the rightto life and liberty, freedom of expression, and equality before the law;and social, cultural and economic rights, including the rights to par-ticipate in culture, the right to food, the right to work and the rightto education." 23 4

The community response to the commission's efforts was quitepositive.2 35 Indeed, local social justice groups joined the commis-sion to form the Community Coalition for Advancement of HumanRights (CCAHR) .236 The commission and the CCAHR co-sponsoreda celebration of the 60th anniversary of the Universal Declaration ofHuman Rights on December 10, 2008, at which Mayor Kitty Piercyissued an official proclamation declaring Eugene's commitment toimplementing human rights principles at the local level. 237 TheHuman Rights Commission agreed to sponsor the workshop, andas a result of the workshop and a series of internal discussions, thecommission made human rights implementation one of its goals. 238

In 2009, the city launched the Diversity and Equity StrategicPlan (DESP).239 The purpose of the DESP was to ensure that humanrights and diversity issues were at the forefront of policy discussionsacross city government. 24 0 In the introduction to the Plan, City Man-ager Jon Ruiz wrote that, "diversity and human rights should nolonger be viewed as 'programs' but as core values integrated into the

View/489 [hereinafter GLOSSARY OF TERMS].233 MacNaughton, Human Rights Frameworks, supra note 92, at 439.234 GLOSSARY OF TERMS, supra note 232, at 4.235 U.S. HUMAN RIGHTS FUND, supra note 221, at 96.236 History, HuM. RTS. CITY PROJECT, supra note 216.237 Eugene, Or., Proclamation Declaring Local Commitment to Human Rights

(Dec. 10, 2008), reprinted in COLUMBIA LAW SCH. HUMAN RIGHTS INST.,STATE AND LOCAL HUMAN RIGHTS AGENCIES: RECOMMENDATIONS FORADVANCING OPPORTUNITY AND EQUALITY THROUGH AN INTERNATION-AL HUMAN RIGHTS FRAMEWORK 24.

238 HUMAN RIGHTS FUND, supra note 221, at 95.239 See CITY OF EUGENE, DIVERSITY AND EQUITY STRATEGIC PLAN 2009-

2014 5 (2009), available at http://www.eugene-or.gov/DocumentCenter/Home/View/515 [hereinafter CITY OF EUGENE, DESP].

240 See id.

VOL. 4 NO. 2 401


very fiber of the organization." 2 4 1 The DESP laid out a detailed five-year plan of action to remove barriers to participation and implementhuman rights in all city departments. 2 4 2 The DESP identified six targetareas: leadership; capacity; workforce and work environment; servicedelivery; communication and engagement; and measurement andaccountability.243 For every target area, the DESP identified a seriesof "action items" and a detailed plan of action to achieve each goal. 24

For example, the first action item was to "[e]nsure plan imple-mentation by factoring diversity and human rights issues into citypriorities." 245 The first step to achieving this goal was for each of thesix city departments to create its own plan for achieving the DESPgoals by the end of the first year.246 Another action item called on cityofficials to create a plan to "integrate Human Rights City conceptsinto city policies and procedures by the end of the second year."247

In order to assess the effectiveness of the various action plansoutlined in the DESP the DESP also required that departments beginusing the "Triple-Bottom Line Assessment Tool" (TBL) .248 The TBLmeasures city policy and procedures based on their impact on socialequity, environmental health, and economic prosperity.249 Socialequity is described as "placing priority upon protecting, respectingand fulfilling the full range of universal human rights including civ-il, political , social, economic and cultural rights." 25 0 The TBL goeson to declare the city's goal of ensuring an "equitable and adequatesocial system with access to employment, food, housing, [and] cloth-ing .... ."251 It asked officials how current or proposed policies andprocedures met basic human needs, addressed inequities, and builtcapacity to advance social equity, among other things.5 The city pro-

241 Id.242 Id. at 7-29.243 Id. at 9.244 CITY OF EUGENE, DESP, supra note 239, at 10-24.245 Id. at 10.246 Id.247 Id. at 11.248 CITY OF EUGENE, TRIPLE BOTTOM LINE ASSESSMENT TOOL (2009), avail-

able at http://www.eugene-or.gov/DocumentCenter/Home/View/I 100.249 Id.250 Id. at 2.251 Id.252 Id. at 2-4.




vided extensive trainings to officials and city employees on humanrights frameworks and how to use the TBL effectively.25 3

With the Plan and the TBL in place, the city began working toimplement human rights at the local level in 2010.254 To begin, thecity relied on Article 1 of the UDHR.2 55 It states: 'All human beingsare born free and equal in dignity and rights. They are endowed withreason and conscience and should act towards one another in a spiritof brotherhood."2 56 The city also established a human rights frame-work to address the means by which it could implement internationalhuman rights standards and principles in its operations, including by:(1) "[p]roviding human rights education"; (2) "[b]eing proactive inHuman Rights efforts"; (3) "[a]ddressing human rights violations";(4) "[i]nsuring active public participation"; (5) "[bjeing transpar-ent and open"; and (6) "[b]eing publicly accountable for progress." 25 7

To implement the framework, The Human Rights and EquityCenter. home to the Eugene Human Rights Commission, initiatedextensive trainings and human rights events for the Eugene Commu-nity.258 The Human Rights Commission also created guidelines forcity departments to ensure broad public participation.5 In line withthe goals of broad public participation, the Center also embarked ona "Human Rights Listening Project" in 2011 to explore what localresidents thought of the current state of human rights implemen-tation in Eugene and what they wanted the city to focus on.26 0 TheCenter made a particular effort to reach youth, immigrant commu-nities, and residents who were currently unhoused to explore theiropinions and human rights needs.261 After completing the listening

253 CITY OF EUGENE, DIVERSITY AND EQUITY STRATEGIC PLAN: ANNUAL

REPORT YEAR Two 2 (2011), available at http://www.eugene-or.gov/DocumentCenter/Home/View/517 [hereinafter CITY OF EUGENE, DESPREPORT YEAR Two].

254 See CITY OF EUGENE, DIVERSITY AND EQUITY STRATEGIC PLAN: ANNUAL

REPORT YEAR ONE 4 (2010), available at http://www.eugene-or.gov/DocumentCenter/Home/View/516.

255 See GLOSSARY OF TERMS, supra note 232, at 4.256 UDHR, supra note 1, art. 3.257 CITY OF EUGENE, DESP REPORT YEAR Two, supra note 253, at 13.258 See id. at 13-14.259 See id. at 14.260 CITY OF EUGENE, HUMAN RIGHTS COMMISSION FY 12/13 WORK PLAN

2-3 (2011), available at http://www.eugene-or.gov/DocumentCenter/Home/View/2710.

261 Id. at 2.

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project, the Center and the Commission made a series of recommen-dations to the Eugene City Council, including continuing dialogueand education about human rights standards and norms throughoutthe community and working with community groups, neighborhoodassociations, and the Sustainability Commission to increase socialequity and promote human rights in Eugene. 26 2

One of the most important recommendations made by the Com-mission was to change the language of the city ordinance that hadestablished the Human Rights Commission to include a broader def-inition of human rights.2 63 These proposed revisions were approvedby the City Council on November 28, 2011.264 While the originalordinance had focused on discrimination in employment and hous-ing, as well as civil rights more generally, the new ordinance gives thecommission the responsibility for establishing and encouraging pro-grams and policies that "place priority upon protecting, respecting,and fulfilling the full range of universal human rights as enumerat-ed in the [UDHR]." 2 65

Although the ordinance was only recently passed, city depart-ments have already begun to address economic, social, and culturalrights, such as the right to housing, the right to the highest attain-able standard of health, and the right to food. 2 66 It is too early to

262 Id. at 3-10.263 Eugene, Or., Ordinance No. 20481, S 2.265 (Nov. 28, 2011), availableat http://

www.eugene-or.gov/DocumentCenter/Home/View/493 (amending sections2.013, 2.265, 2.270, 2.275, & 2.280 of the Eugene Code). Unlike the previousordinance, this ordinance recognizes the full range of human rights guaran-teed by the Universal Declaration of Human Rights and gives the human rightscommission the power to address systemic barriers to achieving these rights.

264 What is the Eugene Human Rights City Project?, HUM. RT S. CITY PROJECT, http://www.humanrightscity.com/faq/what-is-the-eugene-human/ (last visited Apr.19, 2012).

265 Eugene, Or., Ordinance No. 20481, sec. 2 (Nov. 28, 2011), available at http://www.eugene-or.gov/DocumentCenter/Home/View/493 (amending section2.265(1) of the Eugene Code).

266 Eugene has adopted a number of policies to improve access to public servic-es for Eugene's homeless residents. See HUGH MASSENGILL & CAROLYNMcDERMED, PROJECT HOMELESS CONNECT FOR LANE COUNTY (2010),available at http://www.humanrightscity.com/resources/eugene-human-rights-issues/a-local-eugene-issue--homel.html (details on Project HomelessConnect, a program that provides access to services such as dental, medical,legal, counseling, housing, and assistance with benefits applications for underone roof); U.S. HUMAN RIGHTS FUND, supra note 221, at 96 (noting that theEugene Public Library no longer requires a fixed address to get a library card

404



know the impact the expanded human rights ordinance will have onthe implementation of economic, social, and cultural rights in theCity of Eugene. Nonetheless, Eugene has already come a long wayin recognizing the full spectrum of human rights and in attemptingto implement them. Rather than asserting that government has norole in ensuring a right to health care or to housing, the city has rec-ognized those rights and is now working on developing means toachieve them for all residents.2 67 Admittedly, many economic, social,and cultural rights will be difficult to achieve at the city level. But thefact that Eugene has recognized these rights and is trying wheneverpossible to achieve them is a significant accomplishment.

Eugene's success illustrates that the concept of the HumanRights City can have a remarkable impact on local attitudes towardscommunity and human rights. Raquel Wells, the Equity and HumanRights Manager for Eugene, argues that focusing on human rightshas created a new space for community conversations: "Diversity forfolks here was about pointing out the difference. In a community thatis predominantly European American, diversity becomes a narrowand divided framework. The human rights frame seems to be moreunifying. It asks, 'what can we collectively do to make this a better,more responsive place'?" 2 68

Eugene also demonstrates how human rights commissions canevolve to tackle human rights issues more broadly. Major cities acrossthe United States have human rights commissions that, despite theirname, have tended to focus exclusively on civil rights and particularlyon enforcing anti-discrimination laws. 269 Eugene, the Human RightsCity, demonstrates how these commissions can be repurposed toaddress economic, social, and cultural rights as well.

in order to allow the homeless access to the internet and other library servic-es); City ofEugene Passes Resolution for Choice in Mental Health, MIND FREEDOM,http://bit.ly/eugene-4989-1 (detailing an ordinance recently passed by theEugene City Council recognizing choice in mental health treatment as a humanright); PLANNING & DEv. DEP'T, CITY OF EUGENE, FOOD SECURITY SCOP-

ING AND RESOURCE PLAN (2010), available at http://www.eugene-or.gov/DocumentCenter/Home/View/1087 (outlining the City of Eugene's recentlydeveloped program to study food security issues to ensure that all residentshave access to food).

267 Cf GLOSSARY OF TERMS, supra note 232 (supporting the fact that Eugene istaking steps to recognize the human rights of people living in its city).

268 U.S. HUMAN RIGHTS FUND, supra note 219, at 96.269 See Kaufman, State and Local Commissions, supra note 121, at 91.

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VI. Conclusion

While the United States was a major proponent of economic andsocial rights in the 1930s and 1940s, it later denied that economicand social rights were real human rights at all. 270 There is evidence,however, that over the past decade the possibility of a new era for eco-nomic and social rights is emerging. In fact, today there are a myriadof modes by which economic and social rights are implemented inthe United States. As the United States asserted in August 2010 inits Universal Periodic Review report to the Human Rights Council:

From the UDHR to the ensuing Covenants and beyond, theUnited States has played a central role in the international-ization of human rights law and institutions. We associateourselves with the many countries on all continents thatare sincerely committed to advancing human rights, and wehope this UPR process will help us to strengthen our ownsystem of human rights protections and encourage othersto strengthen their commitments to human rights.271

By recommitting to the holistic human rights framework thatencompasses all human rights-economic, social, cultural, civil, andpolitical-this administration is taking one step toward fulfilling thecommitments the United States government made in the 1940s topeople in the United States and around the world. And the VermontLegislature and City of Eugene cases demonstrate that there is muchfor sub-national governments to do to embrace this commitment tothe International Bill of Rights as well. Thus, despite the failure ofthe U.S. Senate to approve ratification of the ICESCR, the examplesin this article illustrate that governmental entities at the federal, state,and local level already recognize and implement-albeit in nascentstages-international economic and social rights.

270 See Alston, Putting ESC Rights Back on the Agenda, supra note 5, at 121, 134.271 U.S. U.RR. Report 2010, supra note 59, para. 5.



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